KRC submits these comments in response to the public notice announcing receipt of permit renewal applications from the U.S. Department of Energy for their residential and inert landfills, which propose to extend the expiration dates to November 4, 2006. KRC understands that, under the TEMPO permit program, the renewal of the ?S and the T landfills at the DOE Paducah Gaseous Diffusion Plant (PGDP) have been combined with a request for approval of a modification of the leachate treatment for the U landfill. These comments address each of those permitting actions.
For the reasons outlined below, KRC respectfully requests that any permit renewals issued by the agency contain conditions sufficient to assure proper controls on land-disposed wastes and proper characterization, treatment, and controls on any leachate, run-on and run-off from disturbed areas.
Prior to providing specific comments, by way of disclosure, KRC represents several individuals in a pending court challenge to the Agreed Orders entered into between the agency and DOE, which the Plaintiffs believe have collectively compromise both the regulatory powers of the agency and the standards for proper management of wastes that are hazardous by characteristic or listing. For this reason, KRC requests that your office forward a copy of these comments to agency counsel.
Specific comments follow.
1. KRC Requests That The Monitoring Conditions For Both Closed Units Be Reviewed For Sufficiency In Coordination With A Review of the KPDES Permit and with any Corrective Action Monitoring From Hazardous Waste Branch To Assure That Full Spectrum of Analytes Are Required For Detecting Contamination In Surface Runoff and Any Leachate.
Given the wide array of hazardous and non-hazardous materials land-disposed by the facility during its lifetime, sampling of a broad array of constitutents of concern is both appropriate and necessary. While the agency appears to dispute the authority of the Cabinet to impose reasonable monitoring conditions on the facility, both federal and state law recognize the Cabinets authority to do so, and no blanket immunity exists for any federal facility from surface and groundwater monitoring under either the Clean Water Act or hazardous or solid waste laws. Nothing in federal law preempts the authority of state agencies to impose reasonable conditions in permits or enforcement orders issued pursuant to those laws to assure that contamination of land and water resources is properly characterized and adequately remedied.
As KRC commented on the KPDES Permit for the PGDP facility in a July 30, 1997 letter (a copy of which is attached as an appendix to these comments), appropriate background sampling upgradient from any outfalls or surface runoff, and from areas unaffected by leachate from the facility, must be conducted. Additionally, if any outfall discharges runoff from undisturbed areas and from closed units, or discharges both treated wastewater and untreated stormwater, sampling of each source of runoff or wastewater must be conducted prior to any commingling of these discharges should be required in order to avoid masking contaminant levels.
Any surface and groundwater monitoring location for the closed units should include, at a minimum, monitoring for all RCRA metals, total base/neutrals and acids using Test Method 625, and purgeables using Test Method 624, as well as screening for all priority pollutants and a full array of radionuclides (both total and speciated, and to include known isotopes and any daughter radionuclides). The Council believes that the RCRA metals testing and use of test methods 624 and 625 should be standard for all solid waste landfills, particularly those such as these units that accepted mixed industrial wastes and related debris, since a wide range of organics and inorganics of concern may be present at concentrations below RCRA - hazardous, but well above background or MCLs.
The permit monitoring requirements should include appropriate monitoring requirements for both runoff from the closed units and of groundwater / vadose zone capable of detecting any chemical, biological and radiological constituents of concern. For example, it is not clear whether monitoring for total uranium and technetium will pick up all degradation isotopes, and a requirement for gross alpha and any known radionuclides of concern including isotopes present as the material degrades, should be imposed.
The agency should stand firm on those monitoring parameters initially proposed in the permit renewal and should add any additional parameters needed to assure full characterization and detection of any leachate contamination to surface or groundwater.
Concerning the permittees objection to a permit condition requiring that groundwater assessment and corrective action be performed under 401 KAR 34:060 for the S and T landfills, the agency is obligated to require management of a unit as a hazardous waste unit to the extent that the facility land-disposed of regulated wastes, and the more rigorous sampling and liability periods attach as a matter of law. To the extent that 401 KAR 34:060 is applicable as a matter of law (i.e. the landfills fall within the definition of solid waste management units and the facility handles treated or stored hazardous wastes), if the 2003 Agreed Order purports to override the application of lawfully-adopted regulations concerning groundwater assessment and remediation in order to allow management of groundwater monitoring and corrective action under a more relaxed solid waste standard, that Order is clearly violative of state law and is ultra vires, since the agency is as bound by its lawfully promulgated regulations as is the regulated party. No party gains any right or protectible interest in an unlawfully issued permit.
2. The Permit For the Leachate Treatment Facility for the C-746-U Landfill Must Include Proper and Enforceable Conditions
KRC once again expresses disappointment that the impenetrable TEMPO permit program has resulted in a proposed permitting action that fails to adequately inform the public-at-large of the scope of the agency approvals. To read the Public Notice issued concerning the proposed permit, the public would believe that the permitting action will include only the expiration of the dates of the closed S and T landfills. In reality, the permitting action, as noted in the May 12, 2005 and July 6, 2005 letters to the facility, include three permitting actions renewal of the S landfill permit, renewal of the T landfill permit, and an authorization of new construction of a Leachate Treatment Facility for the U landfill, which is the active contained landfill into which controversial remediation and other wastes have been disposed and proposed for disposal.
a. A Construction Permit for the Wastewater Treatment Plant Is Required Under 401 KAR 5:005
KRC has copied the Division of Water on these comments, since it is unclear whether the Division of Water has already received, reviewed and issued a construction permit under 401 KAR 5:005. To the extent that it has not, KRC respectfully demands that the agency make a formal determination as to the applicability of that regulation, since it would appear that leachate from a landfill which has managed industrial wastes falls squarely within the ambit of the regulation as an industrial wastewater treatment plant (WWTP) and as a facility whose point source discharge that is regulated under the KPDES program, the proposed facility is required to obtain a construction permit under 5:005. To the extent that the agency determines not to require such a construction permit, KRC reserves the right to challenge such a determination.
b. The Effectiveness of the Proposed Treatment Facility Must Be Demonstrated
It is clear that more information is needed than was provided in the permit application concerning the effectiveness of the proposed wastewater treatment facility. In reviewing the process flow diagram provided for the New Leachate Collection System, and the Site Plan there are a number of unanswered questions and concerns. KRC believes that these issues need to be addressed:
(i) The applicant must demonstrate that the proposed treatment facility can effectively treat the maximum flow in order to assure that both numerical and narrative effluent limits and in stream water quality standards are met.
a. A thorough characterization of the wastewater influent for all pollutants, both for qualitative pollutant loading and maximum flow
b. A review of the capability of the proposed equipment and appropriate literature or other support for the proposition that the proposed treatment train can effectively reduce pollutants of concern,
c. Appropriate influent monitoring from each source of wastewater, and appropriate effluent monitoring as well as in stream background and downstream biological and chemical monitoring to assure that the discharged wastewater meets all appropriate standards,
d. A reopening of the KPDES permit for the facility to include this discharge outfall and to impose all appropriate monitoring parameters and frequencies. Permit limits should be imposed to each constituent that is identified in the leachate, and for degradation byproducts of such constituents as necessary, and appropriate background biological and chemical sampling should be conducted prior to the proposed discharge in order to establish baseline conditions in light of existing stream impacts so as to assure water quality standards are met.
(ii) The commingling of sediment pond discharge with leachate produced from the landfill is of concern. The Site Plan diagram appears to indicate that the facility intends to commingle sediment pond overflow with leachate produced by the facility. This proposed commingling raises several related concerns: first, whether it is lawful to commingle industrial process wastes such as leachate with stormwater runoff without imposing KPDES limits on each discharge prior to commingling; second, whether appropriate sampling of each waste stream has been conducted in order to determine the effectiveness of the proposed treatment process in treating the commingled waste streams, third, whether appropriate sampling and permit requirements will be imposed (as they must) for each wastewater stream prior to commingling and for the commingled influent, and finally, whether the commingling of a discharge that is precipitation-induced with one that is (at least in theory, if the cap is properly maintained and sidewall infiltration is controlled) not precipitation-dependent, is prudent from an engineering standpoint.
It would appear that the treatment of the more concentrated leachate is complicated by the dilution of the leachate through commingling with sediment pond outfall discharge, and that commingling such waste streams might result in bypassing treatment where severe or multiple-peak storm events cause rapid inflow of stormwater.
The applicant should be required to demonstrate that the proposed facility has the capacity, under PMP storm conditions, can treat the commingled wastestream without bypassing, or should be required to provide alternative configurations for the treatment of the two wastestreams without commingling the wastes streams (for example, by designing the facility with two separate treatment trains one for treating the leachate; the other for addressing any chemical or biological contaminants or other pollutants that are not captured in the sedimentation controls; or by controlling the combined conveyance by limiting the times and duration of leachate flow. In closing, the issuance of the approval for the leachate collection and treatment facility should be coordinated with the Division of Water in order to assure that a permit to construct the WWTP is first reviewed and approved under 401 KAR 5:005. To the extent that the agency determines not to do so, KRC requests specific justification for failure to so require, and while reserving any objections, requests that the Division of Waste Management utilize general permitting authority to thoroughly review the proposed leachate management proposal in order to assure that it will be effective at meeting KPDES and water quality requirements and in satisfying the environmental performance standards of 401 KAR Chapters 30 and 48. Thank you for your consideration of these concerns.
Tom FitzGerald Director
Appendix 1: July 30, 1997 KPDES Letter
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
July 30, 1997
Division of Water
14 Reilly Road
Frankfort, Kentucky 40601
I have reviewed the draft DOE and USEC permits for the Paducah Gaseous Diffusion Plant, and offer these preliminary observations. Overall, the permits are well-written. I would tighten up some of the requirements in this manner:
1. I am concerned with the number of outfalls of stormwater runoff that are untreated, and with the combination of stormwater and leachate discharged through outfall 19 of the DOE permit. In order to assure that the testing of these discharges can identify those instances in which the discharge is carrying contaminants at values above background, sufficient background sampling should be conducted to establish the background values from areas unaffected by the site. Without background water quality data, it will be impossible to determine whether elevated metals and other constituents in the runoff are indicative of problems on site. This can be of particular importance in establishing background where the constituent is naturally-occurring but may to be present at elevated levels due to site activities.
For this reason, background samples should be collected and reported from upgradient areas not associated with the site or landfill, for each constituent for which a monitoring or limitation requirement is imposed. Additionally, if any outfall discharges both treated wastewater and untreated stormwater, sampling before the commingling of these discharges should be required in order to avoid masking contaminant levels.
2. The Council has reviewed the proposed monitoring conditions and limitations, and supports the imposition of discharge monitoring requirements for priority pollutants. In many instances, the limit is appropriately set at below detection limits (BDL), but the method(s) to be used are not specified, and probably should be in order to assure sufficiently sensitive sampling and to anticipate and avoid arguments about test methods that are less sensitive.
The Council also believes that any site which is authorized to discharge leachate from a landfill should include monitoring for all RCRA metals, total base/neutrals and acids using Test Method 625, and purgeables using Test Method 624. The Council believes that the RCRA metals testing and use of test methods 624 and 625 should be standard for all solid waste landfills, since a wide range of organics and inorganics of concern may be present at concentrations below RCRA - hazardous, but well above background or MCLs.
3. To the extent that any remedial activity is proposed on areas which fall within either the USEC or DOE permitted area which will result in excavation of soils or remobilization of sediments or contaminants, the permit should contain a reopener clause requiring consultation with the Division of Water on any such remedial plan, in order that the remedial plans may be reviewed and additional monitoring parameters or greater frequency of sampling can be imposed, as appropriate, for the disturbed or affected areas.
4. The permit monitoring requirements should be coordinated with both the Federal Facilities Unit and the Radiation Control Branch for the Department for Health Services, to assure that all appropriate monitoring requirements capable of detecting chemical, biological and radiological constituents of concern has been required. For example, it is not clear whether monitoring for total uranium and technetium will pick up all degradation isotopes, and a requirement for gross alpha and any known radionuclides of concern including isotopes present as the material degrades, should be imposed for any areas where current management or past activities suggest such materials may have been handled, or come in contact with soil or be capable of remobilizing in a discharge. Both NREPC and CHS have information relative to past waste and material management on site, and of areas of known or suspected contamination, which may through surface water discharge or groundwater recharge to streams be potentially affecting water quality. Those areas need to be identified and correlated with the proposed discharge points to determine if, in addition to a radionuclide monitoring requirement, other specific limitations or general monitoring requirements should be imposed for certain contaminants at any outfall or in-stream.
5. The requirement for drawing stormwater samples within the first hour of rainfall events should be imposed on all stormwater-related discharge points, in order to determine whether the discharges contain slugs of water with elevated contaminant levels that are mobilized by the rainfall.
6. The Council agrees with the proposal for requiring monitoring from Outfall 20 of the DOE permit (in-stream monitoring) and concurs with the basis and rationale for the imposition for the chemical and biological monitoring.
Thanks for the opportunity to review the draft permits.